DeBarros v. Frank

ELSON M. DEBARROS, Plaintiff, v. MICHAEL FRANK and JESSICA MIJIA, Defendants.

ELSON M. DEBARROS, Plaintiff, v. AREAS USA LLC, MARGARITA NUNEZ, ANDREW HOLMAN,VANESSA PANNARANDA, and AREAS USA INC., Defendants.

ELSON M. DEBARROS, Plaintiff, v. AIG, AMERICAN INSURANCE GROUP INC., BRIAN DUPERREAULT

, PETER ZAFINO,

and LUCY FATO, Defendants.

ELSON M. DEBARROS, Plaintiff, v. ANTHONY PASERTHIA, Defendant.

C.A. No. 20-260WES

C.A. No. 20-268WES

C.A. No. 20-293WES

C.A. No. 20-297WES

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

September 17, 2020

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, United States Magistrate Judge.

Within a three-week period in June and July 2020, Plaintiff Elson M. DeBarros filed four separate lawsuits in the District of Rhode Island naming twelve Defendants based on their alleged negligence in failing to provide him with workers' compensation benefits in connection with a workplace injury he claims he sustained in March, April, or May 2012 while working at a restaurant in Boston, Massachusetts. See DeBarros v. Frank, C.A. No. 20-260WES ("DeBarros 1"); DeBarros v. Areas USA LLC, C.A. No. 20-268WES ("DeBarros 2"); DeBarros v. Am. Ins. Grp., C.A. No. 20-293WES ("DeBarros 3"); and DeBarros v. Paserthia, C.A. No. 20-297WES ("DeBarros 4"). Plaintiff has filed motions for leave to proceed in forma pauperis ("IFP") in each of the four cases, all of which have been referred to me. Because Plaintiff has satisfied the requirements of 28 U.S.C. § 1915(a)(1), the IFP motions are provisionally granted. However, in light of the IFP motions, the Court must preliminarily screen Plaintiff's complaints pursuant to 28 U.S.C. § 1915(e)(2)(B). Because Plaintiff's four complaints arise from essentially the same operative facts, the Court addresses all four in this report and recommendation, which is being issued in each case. For the reasons that follow, I find that none of the cases should survive screening and recommend that all four be dismissed.

I. Standard of Review

Section 1915 of Title 28 requires a federal court to dismiss an action if the court determines that the action fails to state a claim or is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i-ii). The standard for dismissal is identical to the standard on a motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6). Hodge v. Murphy, 808 F. Supp. 2d 405, 408 (D.R.I. 2011). To survive a motion to dismiss, a complaint must contain sufficient factual allegations to "state a claim torelief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. On a motion to dismiss, a court considers the allegations in the complaint and the documents that the plaintiff has attached to the complaint. Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir. 2013). While all well-pled facts must be taken as true, conclusory allegations should be set aside. Colesanti v. Becton Dickinson, C.A. No. 18-491WES, 2019 WL 4043957, at *5 (D.R.I. July 19, 2019), adopted sub nom. Colesanti v. Dickinson, C.A. No. 18-491WES, 2019 WL 4039529 (D.R.I. Aug. 27, 2019). When a pleading is inconsistent with the exhibits attached to it, the claims in the pleading are rendered implausible. See AJ Energy LLC v. Woori Bank, No. 18-CV-3735 (JMF), 2019 WL 4688629, at *4 (S.D.N.Y. Sept. 26, 2019).

When a legal defect is obvious on the face of a complaint, affirmative defenses, such as the lack of subject matter jurisdiction, improper venue or the statute of limitations, require dismissal at screening under § 1915. Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991); Roberts v. Bishop, Civil Action Nos. 20-10992-WGY, 20-10630-WGY, 2020 WL 2735669, at *1 (D. Mass. May 26, 2020); Thomas v. Funes Towing, LLC, No. CA 15-085 ML, 2015 WL 1538009, at *2 (D.R.I. Apr. 7, 2015). Dismissal at screening for lack of subject matter jurisdiction is consistent with the fundamental principle that a "court has an obligation to inquire sua sponte into its subject matter jurisdiction, and to proceed no further if such jurisdiction is wanting." Flaquer v. Bevilacqua, No. C.A. 08-95ML, 2008 WL 2018182, at *2 (D.R.I. May 7, 2008) (internal quotation marks and footnote omitted). That is, "[i]f the court determines at any time [including at screening] that it lacks subject-matter jurisdiction, the court must dismiss the action."Asamoah v. Wells Fargo Bank, Civil Action No. 14-10322-WGY, 2014 WL 2818649, at *2 (D. Mass. June 19, 2014) (dismissal for lack of subject matter jurisdiction at § 1915 screening).

Because Plaintiff is pro se, the Court has interpreted his pleadings, including the attachments, liberally. Instituto de Educacion Universal Corp. v. U.S. Dep't of Educ., 209 F.3d 18, 23 (1st Cir. 2000).

II. Background

A. 2012 Workplace Injury

Plaintiff, who is now a resident of Rhode Island, alleges that, probably on May 1, 2012,² he experienced a stress-related injury and/or hurt his lower back while carrying a heavy trash can or bag to a dumpster in the course of his employment at the Vinea Restaurant in Boston, Massachusetts.³ Plaintiff contends that his employer, named as Florida-based Defendants Areas USA, Inc., and Area USA LLC (collectively "Areas"), carried insurance issued by New York-based Defendant "Ins Co of Pennsylvania, c/o AIG Claims Services" (collectively "AIG")⁴ to cover employees for workplace injuries and that he reported this injury to various Areas employees including his Areas supervisor (Defendant Jessica Mijia) and the Areas generalmanager (Defendant Michael Frank)⁵ but they "maliciously" failed to report the injury to AIG.⁶ Instead, Defendant Frank "tortured" Plaintiff and compelled him to work despite his knowledge of a "bad lower back injury."⁷ Plaintiff alleges that the back injury was so severe that it "almost cost the life of the Plaintiff" and that his treatment was through "the intervention of the public welfare department," as well as that he sought medical treatment in Rhode Island after being "denied treatment in Massachusetts."⁸

The documents attached to the complaints contradict many of these allegations. They reflect that Plaintiff received medical treatment for a "past" work-related back injury beginning on May 1, 2012, with physicians in Massachusetts.⁹ Plaintiff attached two May 2012 notes from Massachusetts-based treating physicians, which advise that, despite the back injury, Plaintiff could work, albeit with limits on lifting and carrying and time off to go to physical therapy for twelve weeks.¹⁰ The attachments also include a third note reflecting that Plaintiff also received Massachusetts-based medical treatment in January 2013 for a workplace injury in which he was burned "due to degreaser chemical," resulting in three days out of work.¹¹ The attachments confirm that, during this period - 2012 into 2013 - Plaintiff was living in Massachusetts.¹²There is no suggestion of any medical treatment in Rhode Island during 2012 or 2013. Plaintiff's employment with Areas ended in March 2013. DeBarros v. Areas USA Boston, LLC, Civil Action No. 18-10265-FDS, 2018 WL 1904182, at *2 (D. Mass. April 20, 2018).¹³

B. 2018 Workers' Compensation Claim

Six years after his alleged workplace injury, in 2018, Plaintiff, who by then was living in Rhode Island and getting medical care in Rhode Island,¹⁴ alleges that he contacted "the insurance company in charge of employees' health . . . to know whether he could be catered for in the year 2018" but "no action or remedial measures were taken in this regard" and it "was reported thereafter that the injury to . . . Plaintiff's lower back was never reported."¹⁵ The complaints and attachments confirm that, in 2018, Plaintiff contacted AIG and then filed two workers' compensation claims regarding a March 18/May 1, 2012 injury. Chronologically, the first attachment is AIG's "First Report of Injury or Fatality," which was filed on September 24, 2018, with the Massachusetts Department of Industrial Accidents ("MDIA");¹⁶ it permits the inference that, in September of 2018, AIG, the workers' compensation insurance carrier for Plaintiff's former employer, Areas, received the "first report" of an injury ("due to unsafe workplace environment I[nsured] W[orker] had stress related incidents") that had occurred six years earlier,on May 1, 2012.¹⁷ Next on October 7, 2018, MassHealth, the provider of health insurance for indigent residents of Massachusetts, Atlanticare Med. Ctr. v. Comm'r of Div. of Med. Assistance, 149 N.E.3d 343 (Mass. 2020), filed a notice of third-party lien with MDIA based on a May 1, 2012, injury experienced by Plaintiff.¹⁸

Following these MDIA filings, on October 17, 2018, and again on November 30, 2018, Plaintiff signed and filed two workers' compensation claims with MDIA, the first claiming a workplace injury that had occurred on May 1, 2012,¹⁹ the second alleging an injury that occurred on March 18, 2012; both identify as his treating physician the same doctor who had written the May 22, 2012, note opining that Plaintiff's "low back pain that is the result of a past work accident" did not preclude work.²⁰ In his October 17, 2018, MDIA claim, Plaintiff described the May 1, 2012, injury as "[s]tress relate [i]njury . . . verbal abuse, humiliation, defamation bad references been provide bay [sic] all manger [sic]"; in his November 13, 2018, MDIA claim, Plaintiff described the March 18, 2012, injury as "lower back . . . carry a havy [sic] trash bag 70 lb, to the dumpster."²¹ Both claims were promptly denied by AIG, which filed three notifications of denial with MDIA alleging insufficient evidence to support a claim of disability or workplace injury.²² As far as the record reveals, Plaintiff filed nothing in MDIA to rebut these denials. Rather, the pleadings and the attachments establish that Plaintiff abandoned his MDIA claims,...